Redundancy vs dismissal, advice please

[Bishophogp]

A very close friend of mine has been told today she's being made redundant. She says that they're claiming her written English is poor (English is her 2nd language but she's been here for almost 2 decades and both her spoken and written English have not stopped her from excelling in jobs previously), but also that they're looking for someone more qualified/specialised in special educational needs. Am I right in thinking that the fact they're criticising her performance makes this a dismissal rather redundancy? And as such there are processes that need to be followed which include giving warning(s), providing extra training as necessary, and giving her a chance to improve? None of which has been done.

The job is a learning support role at a specialist college which offers education up to Masters level, and she's been in the job for 3-4 years. There has been a change in management recently. The college attracts predominantly (like 70-80%) international students from China who come to the UK with poor IELTS scores. So although my friend was initially training in specialist education needs, her role is more managing these students who struggle due to their very limited grasp of the English language. There is also a sizable and increasing proportion of students who present to her with severe mental health needs that are not being met elsewhere. Despite this, she managed pretty well and has an incredible rapport with students who respect her and appreciate what she does for them.

I am waiting to hear back from her regarding a few things (if she's a member of a TU, if theybe put her redundancy in writing etc). But in the meantime I'd be very grateful for any advice or guidance from anyone with experience in this area.

Thanks in advance.

If she was in a pool of people put into consultation, they are entitled to select based on skills and competencies and her scores would have been shared with her. So it would not be a dismissal even though she’s been given feedback that some parts of her skill set is not up to the standard they were looking for.

Sorry can you please clarify what you mean when you say "put into consultation", and what scores you mean. She's not had an appraisal or any meeting where an asessment of her performance has been discussed. There's no other learning support role there. As far as I understand, there's no restructuring going on.

I'm just worried that she's might be being penalised for mentioning to senior management the issue of a sizable number of international students with failed IELTS scores starting undergraduate (and in some cases postgraduate) degrees.

Thank you for responding.

If her role continues to exist and it is her work being criticised then it is not redundancy. However are there a number of similar lsa roles which are being reduced, if so that would be but usually all are considered for the reduced number. Her standard of work may be relevant then.

Consultation with a selection process is where there are say 6 people doing similar roles and they need to reduce the headcount by say 4.

Every time I’ve run a redundancy process there have been 3 consultation meetings before the final decision is made even if an entire team is going. This is to discuss alternative roles, deployment or whether there is a way to make efficiencies without losing the headcount. Feedback about her written English could I guess also be relevant when discussing her suitability for other roles in the organisation

But what if this is the only learning support role at the institution?

There still has to be a consultation even if that is the only LSA role to discuss whether there is any other role available she could do. That might be a short conversation if there aren’t however.

ACAS can help

Learning support roles can change hence redundancy. For example a Lead learning support role can be made redundant in favour of Special Education Needs officer

If there is only one role then that role can be made redundant, but it’s the role that’s redundant not the individual person, and if the role is being made redundant her English skills or other skills related to the job aren’t relevant.

Has there been a consultation process followed? What has she had in writing?

Thanks so much for all your advice.

So it seems they can use her performance as ground for redundancy.

Going forward what can she do to ensure her rights have been protected? I've have apologies at the gov.uk site as a starting point, but any pointers from someone on either side of this experience would be very helpful.

Thanks again.

Roles are made redundant. People are dismissed.

If there are more than one person with the role both / all will be on notice of redundancy.

If they are the only person in the role there will be a business case for cutting the role and not replacing it.

If she is the only person being given redundancy and others are in the role it is a dismissal. If they are given redundancy and they re- recruit to the role it is a dismissal.

There is no one else providing learning support at this college, just her! It seems since this role will continue and they've admitted to intended to recruit someone else for it, then she is being dismissed? Unless they redefine the role in some way?

I can't give advice on the specifics.. if it were me I would join a union.

Yes they can redefine the role - make it at a different level or give different roles and responsibilities but they will have to consider her for the new role and offer it to her if she is suitable for it.

@Unescorted isn’t quite right when she says that it’s a dismissal if there are other LSAs still in post. Provided they were pooled and all put at risk of redundancy, and the total Number of roles reduced, it is still a redundancy not a dismissal.

They can’t use performance as a grounds for making the role redundant.

They can use performance to determine who from a group of people whose roles are being made redundant are kept in post. Eg eight roles currently exist, which are reduced to four. The eight people are assessed to decide who remains in the four remaining roles and the others are made redundant.

Which is not what’s happening here if she’s the only person doing this role?

@Katrinawaves yes sorry if I didn't make that clear. With pooling if there are 3 roles being brought down to 2 and everyone is interviewed for the 2 remaining roles it is a redundancy.

Not as grounds for redundancy as such but as grounds for not selecting her for alternative roles. So if the role has changed, she could find that someone else is considered more suitable for supporting those with English language issues rather than SEND.

For redundancy there has to be a reason for the role not to exist. Performance has nothing to do with it. If they want to sack her because she is not performing as she should they ought to have a policy for that that they are following.

The one thing I would say @Bishophogp is that being selected for redundancy is very stressful and that the best thing you can do as her friend is to listen to her and to try to be there for her emotionally. If you try to advise her on her rights and get these wrong, you will add to the stress and upset rather than helping her. You would be much better off researching where you could signpost her for help - an employment solicitor, trade union, law centre, EAP helpline, etc than trying to get up to speed via Mumsnet and offering her direct advice yourself.

They will almost certainly be making her role redundant, and hiring a new person in a newly created role that whilst encompasses some of what she does has other aspects to it.

Having spent my life working in education, this is a "get shot of staff you don't like 101" type of thing, regularly spotted, particularly in FE colleges.

I used to be a union rep and frankly, if the college HR are on the ball and have done everything correctly, there isn't much you can do about it.

You are right of course, thanks for your advice. She just seems so defeated, to the point where she's making plans to return back to her home country permanently. She may not take my advice if I sign post her as you suggest, but you are right in saying this is the best thing really to do (besides providing moral and emotional support).

Thanks for all your responses.

A lot of companies lay off 5% every year based on poor performance, even if it's redundancy, they have a certain criteria to choose people to be laid off

I’ve just been through this with half my office being made redundant and half being TUPE over. I highly recommend ringing ACAS, they were fantastic, lots of free advice, informed me of my rights, listened to me, made sure I understood then sent everything to me via Email.

Second recommend calling ACAS. You cannot make people redundant, just roles. If they are changing their structure and putting the job at a higher grade etc they can possibly get round it.

If the role is continuing, she is being dismissed, not made redundant. However, they may offer her a settlement agreement. This involves them paying her a sum of money (more than redundancy pay but less than she would get from a successful unfair dismissal claim at tribunal) in return for which she agrees to leave and gives up her right to go to tribunal. If they go down this route, they should pay for her to get legal advice.